THIS
CAUSE is before the Court on Defendant,
Pilgrim's Pride Corporation's (Pilgrim's Pride)
Motion for Summary Judgment and Memorandum of Law (Doc. 45;
Motion), filed December 13, 2018. Plaintiff, Johnny Mack
Mitchell filed a Response in Opposition to Defendant's
Motion for Summary Judgment on January 2, 2019 (Doc. 50;
Response). With leave of the Court, Pilgrim's Pride filed
a Reply in Support of Motion for Summary Judgment (Doc. 56;
Reply), on March 6, 2019. Accordingly this matter is ripe for
review.

In this
action, Mitchell asserts that Pilgrim's Pride has
violated his rights under Title VII of the Civil Rights Act,
42 U.S.C. § 2000, the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101, the Family and Medical Leave
Act of 1993 (FMLA), 29 U.S.C. §§ 2612, 2624, and
Chapter 760 of the Florida Statutes. See Amended
Complaint (Doc. 16), filed July 14, 2017. Specifically, in
his Amended Complaint, Mitchell contends that while he was
recovering from a work injury, his employer, Pilgrim's
Pride, discriminated against him on the basis of his race and
disability, and violated his rights under the FMLA.
Seegenerally id. After the close of
discovery, Pilgrim's Pride filed the Motion which is
fully briefed and both parties submitted record evidence in
support of their respective positions.[1]

Mitchell
sues Pilgrim's Pride for race and disability
discrimination, as well as for FMLA violations, based on
alleged adverse employment actions Pilgrim's Pride took
against Mitchell during and after his recoveries from a
workplace injury.

A.
Pilgrim's Pride

Mitchell
started working for Pilgrim's Pride's predecessor,
Gold Kist, in 1991, at its Live Oak, Florida, location. Lagos
Declaration at 3. Pilgrim's Pride, a chicken processing
company, acquired the Live Oak plant in 2008. Id.
The company takes workplace safety seriously, id. at
3, and emphasizes to all employees that
“‘[w]orking safely is a condition of
employment,' and that ‘[m]anagement is responsible
for maintaining and enforcing safe work
practices.'” Id. The company also

has an “open door” policy in which employees are
welcome to bring their concerns to management directly, as
well as a “PRIDE Line, ” which is a confidential
toll-free hotline that is available 24 hours a day, 7 days a
week to allow employees, suppliers, customers and other
interested parties to report complaints or concerns.

Id.

Pilgrim's
Pride has standards of conduct applicable to all employees
which state that “‘[f]ailure to follow
instructions or perform designated work' is grounds for
‘corrective action, up to and including
termination.'” Id. While the company has a
progressive discipline policy, an employee can be terminated
immediately, “depending on the case.” Johnson
Deposition at 14, 16. In this regard, the Employee Handbook
states that “certain forms or instances of misconduct,
rule violations, insubordination and other activities can
result in disciplinary action of . . . suspension and or
discharge for one offense.” Mitchell Deposition, Human
Resources Attach. at 20; see also Johnson Deposition
at 15.

When
Pilgrim's Pride acquired the Live Oak plant, Mitchell was
working “as a Live Hanger in the Live Shed Department,
where he reported to Supervisor Kenneth Burnham and
Superintendent James Johnson.” Lagos Declaration at 3;
Mitchell Deposition at 29. Mitchell's work required him
to take live chickens weighing between three and seven
pounds, shackle them, and then hang them on a moving line
that would eventually take the chickens to their death and
subsequent processing. Mitchell Deposition at 21-24, 30;
Papoi Deposition at 34. During the time Mitchell worked in
the Live Shed, the company expected Mitchell and his
co-workers to hang twenty-eight birds a minute. Mitchell
Deposition at 30-31.[3]

B.
Mitchell's shoulder injury, surgery, and
recovery

As a
result of his work in the Live Shed, Mitchell experienced
pain in his shoulders and arms. On February 20, 2013,
Mitchell first reported to the Pilgrim's Pride medical
department that he was suffering from shoulder and arm pain.
Lagos Declaration at 4; Mitchell Affidavit at ¶ 4;
Mitchell Deposition at 57; Mitchell Deposition, Medical
Records at 6. The pain initially began in his right shoulder,
but over time, his left shoulder “worsened
substantially.” Mitchell Affidavit at ¶ 4.

In June
of 2013, Mitchell “applied for worker's
compensation for ‘bilateral shoulder pain.'”
Lagos Declaration at 4; Mitchell Affidavit at ¶ 5;
Mitchell Deposition, Medical Records at 16. Mitchell's
doctor diagnosed him with “bilateral rotator cuff
tendinopathy, impingement signs, mild a.c. joint arthritis
bilaterally, and repetitive use injury.” Lagos
Declaration at 4. During this time period, Pilgrim's
Pride assigned Mitchell to a light duty position, picking
feathers off chickens in the Picking Room, but returned him
to live hanging when his shoulder pain appeared to improve.
Mitchell Affidavit at ¶ 4. However, when Mitchell
resumed his former duties, his shoulder pain returned.
Mitchell Deposition at 57-58; Mitchell Deposition, Medical
Records at 14. Over the next few months, in attempting to
treat Mitchell's shoulder pain, his doctors imposed a
variety of work restrictions including prohibiting him from
reaching over his head and limiting the amount of weight he
could lift and carry. See Lagos Declaration at 4,
30, 37, 40, 43; Mitchell Deposition, Medical Records at
17-34.

As a
result of his ongoing pain, and in response to the
doctor's orders, Pilgrim's Pride transferred Mitchell
to the MSC Department (mechanically separated chicken) where
he ground chicken bones. Mitchell Deposition at 77-79. His
tasks also included making and stacking boxes. Id.
at 80. Mitchell contends that in stacking and making the
boxes, he further strained his shoulder, and had to work
under conditions that were outside the scope of his medical
restrictions. Mitchell Affidavit at ¶ 6; Mitchell
Deposition at 81. At the time, however, Mitchell did not
complain to anyone about working outside the scope of his
medical restrictions because he felt he could not tell his
supervisors “no.” Mitchell Affidavit at ¶ 6.
In response to an Interrogatory asking Mitchell to
“identify any and all requests you have made to anyone
at Pilgrim's Pride regarding desired accommodations,
” Mitchell responded that he “didn't request
any accommodations from anyone.” Mitchell Deposition
Attach. at 8.

Mitchell's
left shoulder became progressively problematic, and on
January 12, 2015, he had surgery to repair a tear on his left
rotator cuff. Lagos Declaration at 4; Mitchell Deposition,
Medical Records at 35. Mitchell returned to work on January
25, 2015, with doctor's orders requiring no lifting, no
use of his left shoulder, and attendance at physical therapy.
Lagos Declaration at 5; Mitchell Deposition at 61-62.
Mitchell's doctor also directed him to keep his left arm
in a sling while at work. Mitchell Affidavit at ¶ 48;
Mitchell Deposition, Medical Records at 38. To accommodate
the doctor's restrictions, Pilgrim's Pride assigned
Mitchell to the Picking Room at the same rate of pay he
earned while in the Live Shed. Lagos Declaration at 5;
Mitchell Affidavit at ¶ 8; Mitchell Deposition at 60,
90, 94; Mitchell Deposition Attach. at 109.

From
January until late August of 2015, Mitchell had regular
follow-up visits with his doctor, as well as with the
Pilgrim's Pride occupational health nurse, Gay Papoi.
Lagos Declaration at 5; Mitchell Deposition, Medical Records
at 37-52; Papoi Deposition at 45. Mitchell's doctor
continued to impose a variety of work restrictions on him as
his shoulder healed, but the restrictions became less onerous
over time. For example, Mitchell's initial January 2015
post-operative restriction barred him from any lifting or use
of his shoulder, but by July of 2015, Mitchell's doctor
reduced his medical restrictions to lifting no more than ten
pounds and no reaching overhead, along with ordering that he
continue physical therapy. Lagos Declaration at 5-6.

During
meetings with Mitchell, Nurse Papoi recalls counselling
Mitchell that “hanging chickens is not advised after
shoulder surgery, ” and asking him to think
“about a different job, and to watch the bulletin board
for jobs to bid on.” Papoi Deposition at 14-15, 45. On
at least one other occasion during his recovery process,
Papoi recalls advising Mitchell in the presence of his
immediate supervisor, Burnham, of the “hazards to his
post-operative shoulder if he were to start hanging birds
again . . . .” Id. at 45. Mitchell recalled
his regular meetings with Papoi, but denies that she
suggested that he should think about a job other than live
hanging, or that live hanging could lead to additional
shoulder injuries. Mitchell Affidavit at ¶ 18; Mitchell
Deposition at 108.

As
Mitchell's shoulder incrementally improved and when the
live hang line got busy, Mitchell's supervisors would ask
him to work in the Live Shed performing a variety of tasks.
Mitchell Affidavit at ¶¶ 8-9; Mitchell Deposition
at 90, 91. Mitchell testified that on several occasions,
Johnson had him perform secondary live hanging duties, which
included retrieving dead chickens that had fallen off the
live hang line and into a vat, and then throwing the chickens
back on the assembly line. Mitchell Affidavit at ¶ 8;
Mitchell Deposition at 63-64. Mitchell also stated that he
occasionally engaged in rehanging birds. Mitchell Deposition
at 60, 64, 90; Mitchell Deposition Attach. at 109. Mitchell
performed some of these activities while he was still wearing
the sling on his left arm. Mitchell Affidavit at ¶ 8;
Mitchell Deposition at 63, 91. Mitchell acknowledged that
this work did not involve the same type of physical activity
as live hanging, but stated that it nonetheless exacerbated
his shoulder pain. Mitchell Deposition at 64. According to
Mitchell, once he was no longer required to wear the sling,
his “supervisors began to demand more physical tasks
from [him], even though [he] was still under medical
restrictions [at the time to not] lift anything heavier than
five pounds or to lift [his] arms above [his] head.”
Mitchell Affidavit at ¶ 9. Again, Mitchell did not
specifically complain or report to anyone that he thought he
was being made to perform duties inconsistent with his
medical restrictions. Mitchell Deposition at 96. Mitchell
stated that he did not complain because he was “trying
to get better” and that he felt like he could not tell
his supervisors “no.” Id.

During
this time period Johnson would often ask Mitchell when he
would be healed and could return to live hanging. Mitchell
Affidavit at ¶¶ 11, 13; Mitchell Deposition at 67,
71-72, 162. Mitchell stated that he viewed Johnson's
questions as an indication that Johnson wanted Mitchell to
return to that job. Mitchell Deposition at 162. Likewise,
Mitchell indicated that he was “eager to return to
[his] live hang position.” Mitchell Affidavit at ¶
11.

C.
Mitchell's termination from Pilgrim's Pride

On
August 31, 2015, Mitchell had a scheduled doctor's
appointment at which he anticipated his doctor would lift all
his work restrictions. Prior to the appointment, Mitchell saw
Johnson and told Johnson that he expected to receive his
doctor's clearance to return to work. As such, Mitchell
told Johnson he would be back in the Live Shed the following
day. Johnson responded, “We'll see.” Mitchell
Affidavit at ¶ 12; Mitchell Deposition at 67-68.
Mitchell interpreted Johnson's statement to mean that
Johnson had “everything under control out there in the
live shed” and did not need him because a full crew was
already assigned to that area. Mitchell Affidavit at ¶
12; Mitchell Deposition at 69-70. Johnson recalls this
interaction differently. In contemporaneous notes he made
regarding Mitchell's attempted return to live hanging,
Johnson wrote that he told Mitchell “that he was not to
live hang until nurse [Papoi] said it was OK to do so.”
Johnson Deposition at 51-52, 65; Riley Deposition at 39.

According
to Johnson and Bobby Riley, the then Human Resources Manager,
when an employee had previously been on restricted work duty
due to an injury, the employee could return to full duties
once the employee had been released by his doctor and cleared
by the company medical team. Johnson Deposition at 33-34, 35;
Riley Deposition at 60-61, 63. Therefore, even if an
employee's doctor removed all work restrictions, the
employee still needed to receive clearance by the medical
team at Pilgrim's Pride before returning to his or her
prior work position. Riley Deposition at 61. Indeed, the
Pilgrim's Pride Employee Handbook explains that when an
employee was restricted from work due to a work related
injury, the Medical Department determines when to return the
employee to full duty. Mitchell Deposition, Human Resources
Attach. at 55-56 (“[t]he Medical Department will return
[the employee] to regular duties as soon as physically
possible. Supervisors should provide a period of conditioning
for return to regular duties for the [employee] following a
period [of] restricted duty and/or time lost from
work.”). Notably, Mitchell denies that Johnson told him
that he had to be cleared by both his doctor and the
company's medical team before he could resume his prior
duties. Mitchell Deposition at 164.

As
Mitchell expected, at his August 31, 2015 check-up, the
doctor lifted all work restrictions regarding his left
shoulder. However, the doctor observed that Mitchell still
“experienced right shoulder pain and noted that an MRI
on the right shoulder remained medically necessary.”
Lagos Declaration at 5-6; Mitchell Deposition, Medical
Records at 53-54. Mitchell stated that the MRI was to
determine whether he “was able to do full duty . . .
[and to see] if everything was good.” Mitchell
Deposition at 101. Likewise, Mitchell stated that his doctor
told him “that the right shoulder was going to need
surgery too because it didn't look too good.”
Mitchell Deposition at 106-07.

The
following day, September 1, 2015, Mitchell arrived at work
and delivered his medical paperwork to Papoi. According to
Papoi, she “spoke with him regarding not hanging
chickens any further as [it was] likely to cause further
injury to . . . [his] left shoulder.” Papoi Deposition
at 45. She also noted that Mitchell's doctor ordered an
MRI for his right shoulder due to Mitchell's complaints
of pain. Id. Papoi did not recall specifically
telling Mitchell not to return to the live hang area, but did
recall giving “him the scenario that he's just had
surgery on that shoulder, and its going to aggravate the
shoulder again, and for his benefit, that he should not go
back to live hang.” Id. at 16-17. Papoi also
communicated her concerns to Mitchell's supervisors, and
to Riley, the Human Resources Manager, indicating that if
Mitchell “goes back to live hang he would probably have
pain in his shoulder again, and we'd have the whole
scenario all over again.” Id. at 17-18; Riley
Deposition at 60. However, Papoi stated she did not
specifically inform Burnham and Johnson that Mitchell
“was not return [to live hanging. Rather, she] told
them that it was not a good idea.” Papoi Deposition at
18. In Papoi's words, she “recommended that he not
return.” Id. Nevertheless, in her deposition,
Papoi testified that after an employee had recovered from a
workplace injury, the employee could return to his former job
“if the doctor . . . released [the employee] to full
duty . . . .” Papoi Deposition at 36.

Mitchell
also recalled his meetings with Papoi and acknowledged that
she was a good caregiver. Mitchell Deposition at 112-13.
While he denies that she told him he could further exacerbate
his shoulder injuries if he continued to live hang chickens,
he does not suggest that either she or any other manager told
him that he could return to his position in the Live Shed
rather than his assigned position in the Picking Room.
Mitchell Affidavit at ¶ 18; Mitchell Deposition at 110.

Without
any discussion about changing his job assignment, Mitchell
proceeded to don the appropriate work attire for live hanging
and reported to the Live Shed. Mitchell Affidavit at
¶¶ 13-14; Mitchell Deposition at 68-70. His
recollection of what happened next differs from that of his
supervisors. According to Mitchell's direct supervisor,
Burnham, Mitchell was observed live hanging, and Burnham
“instructed [Mitchell] to stop hanging and [proceed to]
. . . the picking room . . . .” Burnham Deposition at
15-16, 48; see also Riley Deposition at 36-37.
Mitchell protested and said he had been released by his
doctor to return to full duty. Burnham Deposition at 16.
Burnham again told Mitchell he was “to work the picking
room until released by nurse [Papoi, but Mitchell] refused to
stop hanging, ” and in fact said “no” to
Burnham three different times when Burnham directed him to
stop and leave the work area. Id. at 16, 18,
48.[4]
Burnham explained that because Mitchell was not cleared by
the Pilgrim's Pride medical team to work in the Live
Shed, he did not want him to return to that post, lest he
reinjure his shoulder. Id. at 24-25.

Although
Mitchell denies that he actually hung any birds, he
acknowledges that he was on the live hang line and that he
did catch one chicken by the leg. Mitchell Affidavit at
¶¶ 14-15, 17; Mitchell Deposition at 68, 169,
185-186; Mitchell Deposition Attach. at 107, 110. Indeed,
other individuals on the scene observed Mitchell holding a
bird. Mitchell Deposition Attach. at 107. Mitchell admits
that Burnham “told me to stop hanging” and
testified that in response he “just walked off the
line.” Mitchell Deposition at 185. However, Mitchell
denies that Burnham directed him to report to the Picking
Room. Mitchell Affidavit at ¶ 17; Mitchell Deposition at
185.

After
his exchange with Mitchell, Burnham located Johnson and told
him that Mitchell was “live hanging and did not go to
the picking room as requested.” Burnham Deposition at
48. Johnson told Burnham that the previous day he told
Mitchell that “he was not to hang until released by the
plant nurse. [Burnham] then told [Johnson] that he had given
[Mitchell] the same instructions.” Johnson Deposition
at 41, 65 (“he wasn't allowed to hang until he was
released by the nurse and we verified
it.”).[5] The two men then returned to the Live Shed
where Mitchell remained. Burnham Deposition at 48.

Because
Mitchell denies that he actually hung any birds, he denies
that Johnson told him to stop hanging. Id. at 16;
Mitchell Deposition at 186. However, he admits that in
response to Burnham and Johnson's instructions, he
protested saying that his doctor had released him to full
duty. Mitchell Deposition at 186. According to Johnson, he
told Mitchell that while “the doctor may have cleared
[him, ] . . . medical at the plant [had] not cleared [him].
Until [Johnson and Burnham received] notice from medical
inside the plant” they could not let him live hang.
Id.; see also Johnson Deposition at 36,
37-38, 40, 41. Mitchell similarly testified that he was told
the nurse had not cleared him to return to the live hang
position. Mitchell Deposition at 164. Mitchell also reported
that Johnson “told [him] that [he] was not needed,
because [Johnson] had a full crew working in the live
shed.” Mitchell Affidavit at ¶ 13. Given that
Mitchell remained in the Live Shed, Johnson informed Mitchell
that he was being insubordinate and that he should leave and
go to Human Resources. Burnham Deposition at 16, 48; Johnson
Deposition at 41-42; Riley Deposition at 33, 35, 36.

That
same day, September 1, 2015, Pilgrim's Pride suspended
Mitchell from his job for insubordination. Lagos Declaration
at 6. The paperwork associated with Mitchell's suspension
reflected that he was suspended for disobeying his
supervisors' instructions “not to hang birds until
further clarification” from Mitchell's doctor and
the occupational and safety management team at Pilgrim's
Pride. Lagos Declaration at 76. Two days later, on September
3, the Human Resources Director for the Live Oak
Pilgrim's Pride plant sent Mitchell a letter advising
that he had been terminated from the company. Lagos
Declaration at 6, 78.[6]

D.
Mitchell's reinstatement

Mitchell
submitted a union grievance challenging his dismissal.
Mitchell Deposition Attach. at 105-111. Taking into account
Mitchell's otherwise long tenure at the company, the fact
that he was generally a good employee, and because the
Pilgrim's Pride Complex Manager wanted to give him
another chance, the company agreed to reinstate Mitchell on
October 20, 2015. Lagos Declaration at 6, 85; Riley
Deposition at 48-49, 51. However, the terms of Mitchell's
reinstatement stated that he would not receive back pay for
the time during which he had been terminated from
Pilgrim's Pride. Additionally, Mitchell agreed he would
not return to live hanging, but would be assigned to a
position that would not require him to reach over his head,
or engage in the type of physical activities he did while in
the Live Shed. Lagos Declaration at 85; Riley Deposition at
49.

When
Mitchell returned to work, Pilgrim's Pride assigned him
to work in the MSC Department thinking it would be better on
his shoulders. Mitchell Affidavit at ¶ 22; Mitchell
Deposition at 120-121. This new position paid Mitchell at a
lower rate than he had earned prior to his termination.
Mitchell Affidavit at ¶ 22; Mitchell Deposition at 94,
121, 131; Mitchell Deposition Attach. at 7. As a result of
the lifting he had to do in the MSC Department,
Mitchell's shoulders began to hurt again. On December 10,
2015, he “complained to the Occupational Health
Department of reemerging pain in his left shoulder.”
Lagos Declaration at 6. Mitchell sought medical attention
soon thereafter, and received a steroid injection in his left
shoulder. Papoi Deposition at 42; Mitchell Deposition,
Medical Records at 59-61. Afterwards, Mitchell's doctor
released him back to work without any restrictions. Lagos
Declaration at 7; Mitchell Deposition, Medical Records at 61.

Six
months later, in June of 2016, Mitchell again sought medical
care, complaining of increasing shoulder pain. Lagos
Declaration at 7; Mitchell Affidavit at ¶ 23. When he
mentioned to his MSC Department supervisor that his work was
causing him pain, the supervisor advised Mitchell to find a
co-worker who was willing to rotate MSC assignments with him
so he could avoid the tasks that caused him pain. Mitchell
Affidavit at ¶ 24; Mitchell Deposition at 128. However,
Mitchell did not do so because he thought he “would
have been singled out by [his] fellow employees. They would
have accused [him] of not doing good work and if enough
complaints [were] made by fellow workers, [he] would get
fired. Bottom line, [he] was job scared.” Mitchell
Affidavit at ¶ 24.

Nevertheless,
Mitchell did not report any specific complaints to Human
Resources about his pain or work assignment. Mitchell
Deposition at 128.

After a
June 21, 2016 medical appointment, Mitchell's doctor
“issued restrictions of no overhead lifting and no
lifting of more than ten pounds for four weeks.” Lagos
Declaration at 7; Mitchell Deposition, Medical Records at
63-65. Medical notes also reflect that Mitchell received an
injection to address his pain, which made a
“significant difference.” Glover Deposition at
28. One of the company Occupational Health Nurses, Belinda
Glover, noted that Mitchell requested that he be permitted to
return to the Live Shed. Id. at 14.[7] Glover explained
that the company ordered an ergonomic assessment regarding
whether Mitchell could return to a live hanging assignment,
but was awaiting documentation from that assessment.
Id. at 14-15, 30.

In
light of Mitchell's ongoing shoulder problems, and to
accommodate the most recent work restrictions from his
doctor, Pilgrim's Pride transferred Mitchell to a Salvage
position. Lagos Declaration at 7, 98; Mitchell Affidavit at
¶ 25; Mitchell Deposition at 15, 122, 131; Mitchell
Deposition, Medical Records at 67. In Salvage, Mitchell's
job was to cut off chicken parts that could not proceed
through processing. Mitchell Deposition at 17. In a follow up
appointment with his doctor on July 19, 2016, Mitchell's
physician again released him to return to work without
restrictions on his left shoulder. Glover Deposition at 28;
Lagos Declaration at ¶ 28; Mitchell Deposition, Medical
Records at 69. However, the doctor noted that Mitchell
reported he “had pain when he was lifting 50-pound
boxes repetitively.” Glover Deposition at 28.

Later
that same month, Mitchell “complained to the
Occupational Health Department of ‘discomfort and
heaviness in his right shoulder and bilateral
arms.'” Lagos Declaration at 8; see also
Glover Deposition at 8, 11. Glover administered over the
counter ibuprofen to Mitchell, as well as a pain relieving
gel to his shoulder. Lagos Declaration at 104. She also noted
that she intended to speak to Mitchell's supervisor
regarding the appropriateness of his work placement.
Id.[8] Mitchell again sought medical attention in
February and March of 2017, for pain in his left shoulder.
Lagos Declaration at 8; Mitchell Deposition, Medical Records
at 76-77, 79-80. The doctor released Mitchell “to
return to work without restrictions on the left
shoulder.” Lagos Declaration at 8; Mitchell Deposition
at 142. Throughout this time, Mitchell remained assigned to
the Salvage Department. Lagos Declaration at 8.

E.
FMLA leave

During
the same time period that Mitchell worked in Salvage, he
applied for and was deemed eligible for FMLA leave to address
his hypertension. Id. at 8, 113-127. Mitchell first
received approval for FMLA leave in May of 2016 when
Pilgrim's Pride permitted him to take intermittent leave.
He renewed his request and was approved for FMLA leave at
least two more times, through 2017 and 2018. Id. at
8, 120, 127. During this time frame, Mitchell utilized FMLA
leave for at least seventeen days to attend doctor
appointments associated with his hypertension. Id.
at 8; Mitchell Deposition at 132; Mitchell Deposition Attach.
at 15-16, 39-41, 43-45, 49-51, 55-56, 62-63, 70-72, 76-79,
82-84, 87, 89, 91, 96. Mitchell testified that he never had
any problems taking FMLA leave, and received approval for all
his requested FMLA intermittent leave. Mitchell Deposition at
133.

Mitchell
worked in Salvage until May of 2018, at which point
Pilgrim's Pride transferred him to a Neck Chiller
position. Lagos Declaration at 8; Mitchell Affidavit at
¶ 25; Mitchell Deposition at 15. According to Mitchell,
two women who worked with him in Salvage complained and
“picked at him” because he took FMLA time to
address his hypertension. Mitchell Affidavit at ¶ 25;
Mitchell Deposition at 16, 19, 129, 132. He contends that as
a result of their complaints, and in retaliation of his use
of FMLA leave, his supervisor in Salvage transferred him to
the Neck Chiller position. Mitchell Affidavit at ¶ 25;
Mitchell Deposition at 19. In his deposition, Mitchell
reported that he did not have a problem being moved to the
Neck Chiller Department and that working there was
“going well.” Mitchell Deposition at 20, 27.

Mitchell's
duties in the Neck Chiller Department include “boxing
up chicken necks. Specifically, . . . Mitchell makes boxes
and places them on a conveyor belt, where approximately 40
pounds worth of chicken necks are dropped into the box. The
conveyor belt then takes the box to second processing, where
it is processed for shipment.” Lagos Declaration at 8;
Mitchell Deposition at 24-27. Mitchell reported that some of
his work in the Neck Chiller Department causes him pain, but
that he has not reported that pain to his supervisor or
anyone in Human Resources. Mitchell Affidavit at ¶ 26;
Mitchell Deposition at 142-143. Mitchell acknowledged that he
would likely experience similar pain if he was live hanging,
but stated that “you got to work through the pain no
matter what you do.” Mitchell Deposition at 144.
Mitchell further stated in his January 2019 Affidavit that he
currently did not have any medical restrictions, but he was
“likely to have similar surgery on [his] right shoulder
because of” his work in the Neck Chiller Department.
Mitchell Affidavit at ¶ 26. Mitchell also stated that
his shoulder still had a lot of pain and that he used
“pain patches and heat” to address it. Mitchell
Deposition at 142, 145; Mitchell Deposition Attach. at 8.

F.
Comparators

Finally,
Mitchell points to several employees at Pilgrim's Pride
who he alleges suffered from workplace injuries that caused
them pain, but were permitted to continue with their work
assignments and were not subject to adverse employment
actions. He first references Joyce Grantham, a white
employee, who had hand surgery, but upon recovery, returned
to her former position. Mitchell Affidavit at ¶ 27;
Mitchell Deposition at 136. However, Mitchell has
acknowledged that Grantham now works in a different division
at Pilgrim's Pride because of ongoing pain in her hand.
Mitchell Affidavit at ¶ 27; Mitchell Deposition at 137.
He nonetheless notes that Grantham “was not suspended
or terminated, and did not receive a reduction in pay.”
Mitchell Affidavit at ¶ 27.

Second,
Mitchell points to his former supervisor, Johnson, who
suffered from back issues. In his deposition, Johnson
acknowledged he would occasionally “tweak” his
back, whether at home or at work and that he “just
toughed it out” until it got better. Johnson Deposition
at 46, 47-48; Mitchell Affidavit at ¶¶ 21, 29;
Mitchell Deposition at 182. Johnson testified that he
received medical care for his back, but did not know if his
receipt of medical care or any associated doctor's orders
were included in his work personnel file. Johnson Deposition
at 48-51. Riley, the Human Resources Manager at the time,
noted that Johnson may very well have had a personal medical
problem with his back, but Riley was not aware of whether
Johnson had been placed under any work restrictions by a
doctor or if Johnson had sought worker's compensation for
the same. Riley Deposition at 6, 28-29.

Next,
Mitchell identifies an unnamed electrician at Pilgrim's
Pride who had a fainting incident at home, but nonetheless
continued in his usual work duties at the company. Mitchell
Deposition at 178-79. Finally, in an affidavit attached to
his Response to Pilgrim's Pride Motion, Mitchell
references for the first time a white employee named Ed
Conquer. Mitchell Affidavit at ¶ 10. Mitchell reports
Conquer “was a maintenance guy who had injured his
rotator cuff and was allowed to do his same job even with a
sling on.” Id. According to Mitchell, Conquer
was “allowed to keep doing his job even with the
injury.” Id. at ¶ 28. The record suggests
that all of these employees are white. Id. at
¶¶ 10, 27-28.[9]

Finally,
the record before the Court makes evident that Mitchell
enjoyed working as a live hanger, and despite whatever pain
he may have suffered, he wanted to return to that work. He
stated that if other individuals were allowed to work through
their pain, he did not ...

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